The United States Supreme Court recently clarified the grounds upon which an employee may base a claim for unlawful retaliation by an employer in response to the employee’s involvement in protected anti-discrimination activity under federal law. The case, decided June 22, 2006, is Burlington Northern & Santa Fe Railway Co. v. White, and the Court’s decision will make retaliation claims easier for employees to pursue – and win – in the Third Circuit (of which Delaware is a part).
Human Resources professionals are generally aware that Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate against employees on the basis of their race, color, religion, sex or national origin. They also are generally aware that Title VII prohibits retaliation against employees who “oppose” discrimination or who have “made a charge, testified, assisted, or participated in” a discrimination or harassment investigation. In plain English, Title VII forbids taking retaliatory action against an employee who complains about or otherwise takes action to stop discriminatory treatment.
Until Burlington Northern v. White, however, there was confusion among the federal courts as to how significant an allegedly retaliatory act must be before an employee may pursue a retaliation claim. Some courts, like the Third Circuit, held that, absent an “adverse employment action” such as hiring, firing, granting leave, promoting and compensating, a retaliation plaintiff could not maintain a claim against the employer. The courts in this geographic area required a significant retaliatory action and refused to permit a plaintiff to pursue a case over what the courts viewed to be incidents of relatively little importance in the workplace. As a result, much of the battle in these cases was focused on whether the complained-of retaliation rose to the requisite level of importance. If it did not, the employer could likely prevail on summary judgment and avoid a jury trial and/or having to pay money in settlement.
Other federal courts applied a much more lenient standard, and permitted employees to base retaliation claims on any action by the employer that “would have been material to a reasonable employee.” These courts allowed plaintiffs to pursue cases based on actions that were of lesser importance to their employment situations than the “adverse employment actions” referenced above.
In Burlington Northern v. White, the court analyzed the competing theories, and adopted the more lenient standard. The Court held that a retaliation plaintiff must show that a reasonable employee would have found the employer’s action to be “materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
In doing so, the Court took pains to reiterate its long-standing position that Title VII does not set forth “a general civility code for the American workplace,” and that not every thing that makes an employee unhappy at work will be actionable. The Court reasoned that the inclusion of the word “materially” in the “materially adverse” standard will serve to weed out those cases that are based on mere trivialities, “petty slights or minor annoyances.” Even so, the Court’s opinion marks a significant change from the relatively stringent “adverse employment action” standard formerly imposed by the Third Circuit.
The White opinion is significant for another reason as well. The Court specifically held that the alleged retaliatory action need not be workplace- or employment-related. Rather, the Court found that Title VII’s anti-retaliation provision extends to retaliatory actions that take place outside the workplace and have nothing to do with the employee’s status at work or as an employee.
Is it possible, then, that under the newly-announced standard an employee could base a retaliation claim on a supervisor’s refusing to talk to him at a local bar or restaurant on a Saturday night? It will depend on the entirety of the circumstances presented. Going forward, federal courts are to examine retaliation claims on a case-by-case basis to determine whether the allegations rise to the level required by the Supreme Court.
Suffice it to say at this point that employers can expect an increase in the number of retaliation claims they see – and that the battlefield has tipped in the employees’ favor. As a result of this ruling, it will become more difficult for employers to win retaliation cases in the early stages of litigation via a motion to dismiss, or even after the close of fact discovery via a motion for summary judgment. Because of this, employers would do well to keep their employees and management teams advised of the current state of the law in the retaliation context, and reaffirm that there is to be no retaliation against employees for asserting EEO rights, assisting others with asserting rights, or otherwise attempting to prevent what may be perceived to be discriminatory practices or treatment.
